USA, Oklahoma: Tenth Circuit Hears Marriage Equality Case

In the second gay-marriage case to hit the 10th Circuit Court of Appeals in Denver in the past week, the three-judge panel heard oral arguments in the federal case that challenges Oklahoma’s ban on weddings for gay and lesbian couples. The Oklahoma case, Bishop v. Smith, is the oldest active gay-marriage case in the U.S., having been filed in 2004. Both the Oklahoma and Utah cases, which have been expedited because district court judges have declared the laws unconstitutional, are the first to be heard by a federal appellate court since last year’s historic Windsor decision that struck down a key portion of DOMA, the discriminatory Defense of Marriage Act.

The swing vote in the case seems to be leaning toward marriage equality.

The two cases are the first to reach an appellate court since the U.S. Supreme Court last year struck down the federal Defense of Marriage Act. Since then, gay rights lawyers have successfully convinced eight federal judges that the ruling means courts must strike down laws against gay marriage because they deprive same-sex couples of a fundamental right. During Thursday’s hearing before the 10th U.S. Circuit Court of Appeals panel, Holmes suggested he interpreted the Supreme Court’s ruling the same way. “The state cannot define marriage in any way that would trample constitutional rights, right?” Holmes asked Jim Campbell, the attorney representing the defendant in the case, the Tulsa County clerk.

What’s significant is that the judge widely viewed as the swing vote on the panel, Jerome Holmes, seemed to tip his hand in favor of upholding the rulings. “The state cannot define marriage in any way that would trample constitutional rights, right?,” Holmes asked the attorney representing Oklahoma, which wants the ban to remain. That’s a pretty pointed question that gets to the heart of the legal issue. The other two judges on the panel, Carlos Lucero and Paul Kelly Jr., have already signaled that their votes. (Lucero for marriage equality, and Kelly against.) The state’s predictably lame response is that the voters overwhelmingly supported the marriage ban, so it is okay to trample constitutional rights. Also, opposite sex couples have ”natural procreative potential,” as if the state demands a fertility test to get a marriage certificate.

The Denver Post wonders whether the case will be thrown out on a technicality.

Oral arguments before the 10th U.S. Circuit Court of Appeals on Oklahoma’s ban on same-sex marriage Thursday had less to do with weddings than whether the plaintiffs sued the wrong person — again. “We don’t believe the plaintiffs have standing,” said Jim Campbell, attorney for defendant Tulsa County Clerk Sally Smith… The argument looms large because if defendants are correct, then the plaintiffs’ 10-year court odyssey that began in 2004 will have been in vain. “If the court agrees on our issue, that will end the case,” Campbell said.